SIBA PRASAD DASHSON Vs. KALI CHARAN DASH

JUDGEMENT

(1.) This revision is directed against the order dated 29-7-1980 by the Subordinate Judge, Bargarh in Title Suit No. 91/70 holding that the suit abates in part under S.4 (4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the 'Act'). Before coming to the facts relevant for the purpose of the case it will be helpful to give the genealogy showing relationship between the parties: The petitioner along with opposite parties 4, 5 and 6 filed the suit praying for the following reliefs :

(2.) On the pleadings as stated above, the trial Court framed several issues including one to the effect if the suit for partition is maintainable. During the pendency of the suit, a petition was filed that the suit abates under Section 4 (4) of the Act. The learned Subordinate Judge on a consideration of the said application and the objection filed thereto held that the suit abates in respect of the suit properties excepting H. S. Plot Nos. 8, 5 and 4 and Plot No. 223 under item Nos. 2, 3, 5 and 6 of the plaint schedule. This revision is directed against the said order. It is contended on behalf of the petitioners that trial Court erred in holding that the suit abates in respect of some of the items of suit properties since the suit involves determination of the validity of the deed of gift executed by Shiba Prasad in favour of the plaintiffs and the Will executed by Sriya in favour of defendant No. 1 adjudication of which is not within the competence of the authorities under the Act. It is further contended on behalf of the petitioners that it is the substance of the dispute in the suit which is to be considered for determining the question of abatement of the suit and not merely the reliefs sought.

(3.) It is not in dispute that the properties in respect of which the suit has been held by the trial Court to have abated come within the notification issued by the State Government under S.3 (1) of the Act. The question whether a suit pending in the Civil Court either at the stage of trial or appeal or revision abates under Sec.4 (4) of the Act has been the subject-matter of consideration in a large number of decisions of this Court. Shortly put, the ratio in the decided cases has been that if the subject-matter involved in the suit is available to be dealt with by the authorities under the special Act and the reliefs sought in the suit can be granted by the said authorities the suit pending in the Civil Court shall abate, vide (1982) 54 Cut LT 584 : (AIR 1983 Orissa 114). (Jadumani Biswal v Narayan Chandra Biswal), (1983) 55 Cut LT 561, (Padma Charan Mohanty v. Koili Bewa). AIR 1982 Orissa 218, (Prasanna Mali v. Raghumani Misra), (1984) 1 OLR 54. (Radhashyam Jana v. Jagannath Jena), (1984) 57 Cut LT 65, (Pranabhandhu Panu Ojha v. Bhika) Maharina Ojharain the first case mentioned above the Division Bench took the view that if a suit abates, then the Consolidation Authorities must have jurisdiction to go into the question involved or conversely, if a matter can be gone into by the Consolidation Authorities, then a suit in respect of that matter must abate under S.4 (4). The test to be applied in determining the question whether a suit shall abate or not is whether the parties can get the real and effective relief from the Consolidation Authorities. In all these decisions emphasis has been given on the real and effective relief sought in the suit.